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Tuesday, January 3, 2017

Book Review: The Oath: The Obama White House and The Supreme Court by Jeffrey Toobin

I
greatly enjoyed The Nine by Jeffrey
Toobin and so was eager to read his follow-up, The Oath. The Nine examines
the Renquist court, which was remarkably stable. The Oath on the other hand uses the framing device of Obama's first
term. This is an important distinction. The book concludes in 2012, not 2016.
Perhaps Toobin will write a third book or a second edition that encompasses the
entire presidency. While reading this book in December of 2016 I could not help
but reflect upon the importance and transformative nature of the supreme court
and how President-Elect Trump may shape it. It is a disturbing thought exercise.

When
people think of President George W. Bush's legacy the majority will concern
themselves with foreign policy and the other policies associated with the
post-9/11 period. After reading this book I wonder if Bush's most significant
domestic legacy will be the appointment of Chief Justice John Roberts and
Justice Samuel Alito.

Following
the appointment of John Roberts and Samuel Alito in 2005 and 2006 the court
lurched radically to the right. The extent of the change became fully apparent
under Obama's first term. Before 2006 the far right of the court was occupied
by Clarence Thomas and Antonin Scalia, but with Alito and Roberts' appointment
they joined the mainstream of the court. Decisions like Citizens United and
others reveal how radical the Supreme Court has become.

Toobin's
writing reveals, in my opinion, that he is sympathetic or aligned to the
criticisms of the new court. Under the Roberts court precedent is simply
irrelevant and the so-called conservative justices feel comfortable overturning
laws, displacing decades of precedence and going against the expressed will of
the democratically elected branches of government to satisfy their own legal
ideology.

Toobin
gives the reader far more than one would get from reading current coverage of
the courts. He provides deep background on the personalities of the justices
and their lives. During this period several tragedies marred the court and he
discusses how it shaped the decision making and relationships. Toobin also
provides a broader, more meaningful context. The right-wing (for lack of a
better term) essentially want to reset the United States to the Lochner Era
(pre-1937) where government intervention in many fields was viewed as
unconstitutional. Lochner has been cited in recent cases to justify decisions
despite 70 years of precedent overruling it.

Ignoring
who controls the White House and the Congress, the Supreme Court is poised to
continue to march down this revolutionary path. It would do little good to
elect a liberal president in 2020 if the supreme court has curtailed the
interventions that could meaningfully make a difference. Toobin implies that
progressives need to take the courts more seriously and I think this book makes
a compelling case on how Obama failed in that regard in his first term.

Though
not as strong as The Nine I found
this a compelling and disturbing read. I recommend it those interested in the
law, the supreme court and American politics.